1. Richard Pious Position: CON
“Resolved, Presidents Have Usurped the War Power That Rightfully Belongs to Congress.”
Richard Pious
Position: CON

2. Constitutional Debate
As Kassop indicated, the framers refined the war powers to assign certain responsibilities to each branch.
“Repel Sudden Attacks…”
Though Congress “declares” (rather than “makes”), the president is authurized to “repel Sudden Attacks…”

3. Constitutional Debate
Pious: Argument
The intention of the framers is therefore clear: “the power to ‘make’ war is not limited to Congress. It is a responsibility shared by Congress and the President.
Otherwise Constitution is Unclear
Nothing else, in Pious’ opinion, is certain. Constitutional Language is not specific to resolve jurisdictional disputes.
History is a Better Judge

4. War Powers: Living Constitution
History of War Powers
Early Presidents: Used Powers Quite Freely
Lincoln: Informed Congress After the Fact
Congress authorized expanded presidential retroactively, after being called into special session.
Court: Declaration of War No Required In Civil Wars

5. War Powers: Living Constitution
Police Powers:
Began with Cleveland, then Teddy Roosevelt, expanded by Truman.

6. War Powers: Living Constitution
Presidents and Cold War
Two trends:
1) Congressional Resolution Supporting Presidents
2) Congressional Abdication of Authority
Why No Declarations of War?

7. War Powers: Living Constitution
Presidents and Cold War
Examples: (Resolutions)
Cuban Missile Crisis (1962)
Gulf of Tonkin Resolution (1964)
Gulf War (1991)
Iraq War (2003)
Examples: (Abdication)
Korean War (1950)
National Commitment Resolution (1969)

8. War Powers and the Judiciary
Courts has for the most part resisted injecting itself between the president and Congress.
Vietnam Cases:
Luftig v. McNamara (1967)
Draftee resisted on grounds that Congress had not declared war. Court support presidential auth.
Berk v. Laird (1970)
President had war powers in absence of declaration of war, but such authority depended on joint action with Congress.

9. Failure of the War Powers Resolution
Congress responded to an permissive court by passing the War Powers Resolution.
Presidential Response
Every president Nixon has questioned its Constitutionality.

10. Failure of the War Powers Resolution
War Powers and Judiciary: Dodge Issue
Cases:
Dellum v. Bush (1990)
Several members of Congress sued to stop Bush from using force to expel Iraq from Kuwait. Court found use of presidential war powers had become too expansive, but then refused to pass judgment, deferring instead to Congress to decide.
If Congress did not Act, the Courts would not Act.

11. Failure of the War Powers Resolution
Clinton and War Powers
Clinton largely ignored Congress when planning military act first in Haiti, then in Serbia.
Case:
Campbell v. Clinton (1999)
Court that members of Congress who challenged Presidential War Powers lacked standing, since Congress had not clearly expressed its will.

12. Failure of the War Powers Resolution
Bush and Iraq
Cited Congressional 2002 resolution supporting the use of force against, and 1998 policy of “Regime Change” as “joint” authorization to invade Iraq in March 2003.
Bush and International Mandate
Bush claimed an International Mandate, but struggled to get in passed through the UN.
Case:
Doe v. Bush (2003)
Court again refused to rule on whether a president had overreached, citing evidence of joint authorization.

13. Conclusion Conclusion:
The problem has not been presidential war powers, but the failure of Congress (or the courts) to counteract presidential ambitions.